Liability and Drowning Accidents During Military Training Exercises

Liability and Drowning Accidents During Military Training Exercises

Posted By
The Doan Law Firm

In a
previous post, a drowning accident discussed the issue of liability for deaths that
occur during floods. In today’s post, the drowning accident lawyer
will review the question of liability for drowning deaths involving active
duty military personnel during deployment or during training exercises.
Before continuing, consider the following information:

Military Medicine

A study published in the journal Military Medicine in 2007 revealed 71
confirmed deaths due to drowning during the first two years of the American
military presence in Iraq. Of those deaths, it was determined that 52
personnel drowned after motor vehicle accidents in Iraq during the period
2003 – 2005.

In May of 2016 Navy SEAL candidate James Derek Lovelace drowned during
a training exercise where candidates are expected to tread water while
their hands and feet are bound. According to a video recording of the
training session, a SEAL instructor repeatedly pushed Lovelace underwater
over the course of five minutes after the candidate showed obvious signs
of physical distress. The San Diego (CA) medical examiner found evidence
of a previously undetected heart abnormality but ruled that “…
the actions, and inactions, of the instructors and other individuals involved
were excessive and directly contributed to the death, and the manner of
death is best classified as a homicide.” The Navy later declined
to press charges against the SEAL instructor.

On the evening of June 2, 2016 nine soldiers assigned to the 1st Cavalry
Division at Fort Hood, Texas drowned after their Light Medium Tactical
Vehicle overturned while attempting to cross a flooded creek during a
training exercise. Although the accident occurred at a “designated
low water crossing area,” no one recognized that the creek was swollen
with water from heavy rain in the area and that flash flood warnings had
been issued earlier that day that included the Fort Hood training range
where the accident occurred.

It is an accepted principal of law that a combatant cannot sue a superior
for any injuries received in a combat zone, even if the death was the
result of a “friendly fire” incident in which artillery fire
or an air strike is misdirected and causes casualties among “friendly”
forces rather than an “enemy.” In the latter case, the superior
commanding personnel are said to be immune to a civil lawsuit. The law
isn’t quite as clear when a death or an injury occurs during a training
exercise outside an active combat zone.

It can be argued that a member of the armed forces, being a volunteer in
the first place, accepts the risks associated with training for a possible
deployment to a combat zone and has thus waived their right to sue another
service member or a branch of service. This argument falls apart upon
a closer examination of the fundamental aspects of personal injury law.

In any type of training the trainer has a duty to protect the trainee from
undue risk of harm, even if the training is meant to simulate actual combat
conditions. Admittedly, this can be difficult to accomplish without some
risk entering to a training scenario. However, since a branch of service
will not be well-served by an injured trainee, much less one that has
died from injuries, it is in the branch’s best interests to limit
the potential for harm to a trainee by establishing safety protocols that
must be strictly followed.

It is also in a service branch’s best interests to allow deviations
from protocol if, in the opinion of the supervising personnel, such deviations
are necessary and will not lead to the risk of injury. In the third example
given above, it was the responsibility of the senior staff member to examine
local conditions for safety hazards and a failure to detect greater than
normal flow in the creek could be interpreted as a failure of the duty
to protect.

Finally, training supervisors have an obligation to report any and all
accidents in a timely and accurate manner. This allows for the identification
of potentially harmful or dangerous training practices that may need modification
in the future. Unfortunately, many training personnel feel that such reporting
can be seen as a hindrance to career advancement and will often fail to
report anything other than an accident that leads to a hospitalization.

In summary, it is accepted that accidents will occur during military training
exercises, even in the presence of the most exacting supervision and safety
requirements. However, there have been numerous reports of instructors
“cooking the books” by either understating the seriousness
of an accident or, in some cases, a deliberate failure to report an event.
Since the military branch conducting a training has a duty to protect
the safety of trainees participating in these exercises, any accidental
drowning death occurring outside an active combat zone should be carefully
scrutinized by trained accident investigators.

Any breach of this duty to protect, such as a deliberate attempt to falsify
an accident report, may be considered as an indication that negligence
has played a role in a drowning death and thus expose the supervising
service members, and the service branch, to the possibility of being named
as defendants in a civil wrongful death lawsuit.